LUSAKA High Court judge Sharon Newa yesterday dismissed with costs Felix Mutati’s preliminary issue in their MMD leadership matter, saying that not only is it forum shopping, multiplicity of actions but an abuse of court process.
Judge Newa made the ruling in a case in which Mutati raised a preliminary issue and was seeking the court to determine whether Winnie Zaloumis could challenge his election as MMD president when her tenure of office expired in 2016.
Zaloumis in her capacity as acting MMD national secretary for the Nevers Mumba led MMD sued Mutati, Raphael Nakacinda, Mwansa Mbulakulima and George Kangwa in the High Court.
Zaloumis is challenging the legality of the convention that was held in Kabwe that also purported to elect Mutati and other into party office.
Mutati questioned the standing of Zaloumis in a preliminary issue he raised.
But Zaloumis’s lawyers Jeah Madaika and Mulambo Haimbe had urged the court not to entertain such issues because the matter before court was in relation to the illegal convention, which saw the election of Mutati and not the issue in regards to the tenure of office of Zaloumis.
In her ruling, judge Newa observed that the preliminary issue raised before her court was clearly a subject of litigation before the Constitutional Court, adding that proceedings to hear Mutati’s preliminary issue would be to encourage a multiplicity of actions.
“The preliminary issue sought to be raised before this court touches on the plaintiff’s capacity to hold office in the NEC of the MMD and which as can be clearly seen from the reliefs sought in the matter before the Constitutional Court is a subject of litigation before that court. To proceed to hear the defendant’s preliminary application would be to encourage a multiplicity of actions and ultimately an abuse of the court process and would risk the courts making decisions over the same subject matter involving the same parties. This should never be tolerated by the courts,” judge Newa said.
“As the issue of tenure of the office bearers of the NEC of the MMD is before the Constitutional Court, it cannot be raised as a preliminary issue before this court as not only is it forum shopping, a multiplicity of actions, but an abuse of court process as well.”
Judge Newa said she would not entertain the preliminary issue raised by the defendants on October 26, 2018 because it was an abuse of court process.
She said trial would proceed on the dates that were already set which are November 6 and 7.
“Leave to appeal is granted and costs of this application shall go to the plaintiff to be taxed in default of agreement,” ordered judge Newa.